Free, fortnightly PIP, ESA and UC Updates

Our fortnightly bulletin, with over 80,000 subscribers, is the UK's leading source of benefits news. Find out what's changing, how it affects you and how to prepare. Our mailing list is securely managed by icontact in the US.

Until then, the DWP had argued that a claimant could only score points for being unsafe if harm was likely to occur on more than 50% of the occasions on which they attempted an activity.

However, in March a panel of upper tribunal judges held that the decision maker should look at whether there is a real possibility that harm might occur and also at how great the harm might be. The greater the potential harm, the less likely it needs to be that it would happen on any specific occasion.

After a disgraceful 7 month delay during which the DWP ignored the ruling, new guidance was issued to health professionals and decision makers last week, ostensibly to comply with the court ruling.

The DWP also announced that they wold be looking back through cases decided since the ruling to decide if awards should be changed.

In reality, however, the DWP have interpreted the ruling in the narrowest possible way and given a very strong indication to decision makers that they expect very little change in the way cases are decided.

Looking for excusesIt is clear that decision makers are being encouraged to trawl through all a claimant’s activities in an attempt to find any excuse for not awarding points. They are advised in new guidance:

“As always it is important to assess the consistency of the evidence. Key pieces of information could include whether they see specialists or have medical input which would support the frequency or severity of incident. It may also be helpful to consider if the claimant is able to undertake activities (such as cycling, swimming, working in a hazardous environment or taking young children out of the house alone), where the severity of harm could be grave.”

In fact, the question is not whether the claimant undertakes activities but whether they can do so in a manner unlikely to cause harm to the claimant or to another person, either during or after completion of the activity.

A claimant might have absolutely no choice but to take a small child to nursery or the doctors, for example, because they are a single parent or because their partner works. The fact that they have done so even repeatedly does not mean that it is safe. If, as the DWP say, the severity of harm could be grave then the likelihood of it happening need only be small for points to be awarded.

There is also the real possibility that a person working in a hazardous environment may be receiving supervision from colleagues to keep them safe. And it can reasonably be argued that anyone who goes swimming in a leisure centre will be being supervised by a trained lifeguard.

Nothing changesThe new guidance to decision makers gives 5 examples of claimants who might be affected by the court ruling.

We’ve listed the five examples below and set out what effect the change in the law will have on awards, according to the DWP. You can download the guidance for full details.

Example 1The claimant has severe learning disabilities and does not have an awareness of danger. The claimant already met descriptors based on safety before the court decision, so their points remain the same. No change of award.

Example 2The claimant has diabetes with hypoglycaemic events which at their most severe can cause them to lose consciousness. None of the descriptors are met on safety grounds because they have warning symptoms. No change of award.

Example 3The claimant has narcolepsy events which cause them to lose consciousness. The claimant has their condition under control due to changes in diet, exercise and medication. No change of award.

Example 4

The claimant has absence seizures, without warning, trigger or pattern, up to a few of times a day, which involve them losing focus and entering a trance like state. They do not fall and take reasonable precautions by using safe crossings when making journeys. No change of award.

Example 5The claimant has epilepsy with tonic-clonic seizures. There are no warning symptoms or triggers and the incidents can happen at any time of the day. There are no warning symptoms or triggers and the incidents can happen at any time of the day. When the clamant has a seizure their body will become stiff and then their arms and legs will start twitching. They may drop any items they are holding and will fall from a standing position. Incidents happen once per week on average.

Points awarded on safety grounds for daily living:

Preparing food. 1 (c) 2 points

Washing and bathing. 4 (c) 2 points

The claimant is awarded 4 additional points for daily living. This does not meet the minimum of 8 points for an award.

Planning and following journeys. No points are awarded as the claimant can take precautions by using safe crossings.

The result is: No change of award.

A nod’s as good as a winkThe DWP say they are expecting 10,000 claimants to benefit as a result of the change to the law, we think it should be a great many more. Yet, out of five examples given to decision makers, in not one case does the change in the law result in a change in award.

It would be a very obtuse decision maker indeed who did not get the message that the DWP do not expect them to make any real changes to their decision making as a result of the upper tribunal ruling.

Tribunals, we can only hope, will take a very different view.

You can download ADM memo 29/17: PIP, the meaning of 'safely', part 1 and ADM memo 30/17: PIP, the meaning of 'safely', part 2, decision makingfrom this page.